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Posted By grumpy
Employee (Manager) allows an external contarctor to use a FLT in our premises to help move goods.
Contractor turns out to be trained but no evidence was checked at the time.
No incident occurred this was reported by another employee.
I would like an o pinion as to what H&S laws have been braeched in this instance?
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Posted By David Bannister
Hi Grumpy, I'm no lawyewr but it may be possible to construct an argument that the failure to ensure that the FLT user had been adequately trained is a breach of Reg 9 PUWER '98. This could also be looked at as a breach of HASAWA '74 Section 2.2 (c), inadequate supervision.
However I very much doubt that either case could or would be pursued, particularly as the user had in fact received some training, albeit not on your truck in your premises, no incident occured and no damage was caused.
An example perhaps of expediency taking preference over safety. Therefore a cultural/behavioural issue that needs to be addressed.
David
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Posted By ddraigice
My first thought was that there hasnt been a breach. But... one way to look at it is to think what action HSE could take if they came across it.
I suppose the manager didnt ENSURE the person was trained AND competent therefore section 3 of HSW Act. Although the person is trained he didnt ensure competence for activities which may affect his own employees so possibly section 2 as well.
If there had been an incident HSE could possibly prosecute both companies or the manager as well of course (section 37 HSW) but without an incident they could look at the company to see if they have procedures in place to either prevent equipment being used by others or a policy for ensuring competence etc. and issue an improvement notice.... on....it's like being back in school..... reg 3 management regs for a lack of a risk assessment.
Throw in a reg 11 of MHSW for failure to co-operate as well.
PUWER would only apply to the companies own employees and as the contractor was trained it hasnt been breached. The fact that the client didnt have management procedures for checking the competence is a section 3 issue(and CDM if applicable).
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Posted By Ron Hunter
"this was reported by another employee". So all you have so far is hearsay. No breaches.
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Posted By Crim
I agree that this is hearsay therefore we don't know if any laws were broken.
How many of us check for training proof when accepting a lift off another driver, or accepting first aid off a stranger when injured?
The list could be endless?
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Posted By Ian_P
I agree,
This is more a case of bad management that could possibly leave them open to breaches of law.
There is no injury or loss ergo no negligence on a civil basis.
On the criminal side I doubt HSE would prosecute because a trained driver was safely (?) driving a FLT!
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Posted By safety medic
Tell me if I am missing a trick here, but yes of course H&S law has been breached. The question wasn't if you would actually get 'done'.
Just because an accident or incident hasn't occurred the failing is still the same regardless of the fact he was trained.
Reg 9 PUWER
Every employer shall ensure that all persons who use work equipment
have received adequate training for purposes of health and safety, including
training in the methods which may be adopted when using the work equipment,
any risks which such use may entail and precautions to be taken.
The action is to ensure his competence, by not doing so is the failure.
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Posted By Pete48
What a delicious treat to place before us on a Friday. Just enough info to tempt but not too much to make it obvious?
From the details you give it is most likely that there has been a breach but beyond that the detail is missing. The question of whether a case would be brought is irrelevant to whether a breach occurred or not, although by focusing on possible prosecutions we can sometimes identify exactly which breach(es) has(have) occurred.
The employer of the driver had ensured that he was trained for the task. Assuming, of course, that the FLT belonged to his employer but we don't know that from the post. But why did the FLT driver take on this task, should he have done so or is there a gap in his training or the contractors SSOW that needs further thought?
Neither do we know whether the work undertaken was within the agreed contract, covered by contractors SSOW or a task covered by the occupiers SSOW or whether the FLT was suitable for the work being carried out?? Or whether the work was actually completed in accordance with those SSOW if they existed.
We don't know what information had been given to the FLT driver with regard to site safety.
And then there is the question of the managers competence and his H&S training; wilful disregard of H&S rules on his part or ignorance of those rules?
So the most likely primary breach lays in the area of duties of the occupier or controller of premises.
Choose whichever you think are most appropriate after the details are apparent.
One thing for sure, it needs looking at to determine whether the procedures need to change or the people involved need to do things differently in the future.
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Posted By Adrian Watson
If there has been any breach it is not with PUWER. It is a breach of HSW 74 S2(2) a failure to have a safe system of work.
Regards Adrian
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